WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:
486.4 (2.1) Victim under 18 - Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
ONTARIO COURT OF JUSTICE
DATE: 2023 12 14 Toronto
COURT FILE: #22 70007919; 22 80007915; 22 10003739
BETWEEN:
HIS MAJESTY THE KING
— AND —
TIAGO VIEIRA-PAULINO
SENTENCING JUDGMENT
Before: Justice Brock Jones
Heard on: November 7 and December 11, 2023 Written Reasons for Judgment Released on: December 14, 2023
Counsel: C. Sweeney, counsel for the Crown C. O’Connor, counsel for Mr. Vieira-Paulino
Jones J.:
Introduction
[1] Tiago Vieira-Paulino entered guilty pleas on November 7, 2023, to eight different criminal charges. On June 20, 2022, he randomly attacked two strangers with a knife. On several dates in November and December 2022, he assaulted his intimate partner and her three children while he was living with them.
[2] The Crown proceeded summarily.
[3] The Crown sought a sentence of six months custody for the stranger assaults, one month consecutive for the assault on his intimate partner, and another month consecutive for the assaults on the children. The defence sought a sentence of six months less a day for the stranger assaults and agreed to the sentences proposed for the other offences. Both sides agreed that a three-year probation order was also appropriate.
[4] Following the submissions of counsel, I informed the parties that I had serious reservations about the sentence being proposed. I ordered an in-custody pre-sentence report (“PSR”) and adjourned the case to December 11, 2023, for further submissions.
[5] On that day, I gave my oral reasons for sentencing. These are my written reasons, which explain why I exceeded the Crown’s position.
[6] The proposed eight-month sentence was manifestly inadequate and would have brought the administration of justice into disrepute. It demonstrated a lack of appreciation of the seriousness of the violence that occurred in each of these incidents. It did not reflect what prior court decisions have held about the severity of unprovoked stranger assaults with a weapon resulting in serious bodily harm. Most concerning to me, however, was the Crown’s position regarding the crimes of violence committed against the children and their mother. The proposed thirty-day sentences did not adequately consider that Mr. Vieira-Paulino abused his position of trust in this family, and the long-term impact of repeated acts of intimate partner violence and the physical abuse of children.
[7] As I will explain, an appropriate global sentence is 2 years less a day in custody, followed by three years’ probation.
The Offences and Agreed Statement of Facts
[8] An agreed statement of facts was presented to the court. For each information, I have included the charges that resulted in a finding of guilt.
Information #22 10003739 (The Stranger Knife Attacks)
- Assault Causing Bodily Harm
- Assault With A Weapon
- Mischief Under $5000
[9] On Monday, June 20, 2022, at approximately 6:20 pm the accused entered a Tim Horton’s restaurant located at 1094 Bloor Street W in the City of Toronto. He attended the front counter which was manned by staff members and made a demand for a knife and wanted to cut out something from his pocket. The staff refused to give a knife to the accused. At this point, the accused jumped over the counter to the food prep area of the restaurant and knocked over various items, including food packaging and food to the ground. This frightened the staff who ran off and hid.
[10] The accused then grabbed a knife from the food prep area and took it with him leaving the store.
[11] The accused then approached the first victim, Fang-Ke Hsieh, who was out front of Popeye's restaurant at 1115 Bloor Street W in the City of Toronto. He then swung the knife at the victim but did not make contact with her. However, this action frightened her and she felt he intended to harm her.
[12] The accused then walked to the A&W restaurant located next to the Popeye's where the next victim, Dr. Nayeema Siddiq, was out front of the store. She was looking at her phone and felt contact with the right side of her neck and then felt blood. The victim looked and observed the accused with a knife in hand. She suffered a laceration to the right side of her neck that was approximately three inches long. Photographs of her injuries were introduced into evidence on consent.
[13] Police were contacted via 911 and officers attended promptly. The accused was subsequently arrested and read his rights. The accused was then transported to Toronto Western Hospital for treatment as it was believed he could be under the influence of an intoxicating substance. He was released from the hospital and subsequently held pending a show cause hearing.
Information #22 70007919 (Intimate Partner Violence)
- Assault
- Mischief Under $5000
[14] The victim, M.T., and the accused met through a Portuguese Facebook group in early October 2022. On October 16, 2022, the accused moved in with the victim and her three children, ages 3, 4 and 5.
[15] On Tuesday, December 6, 2022, the victim made an emergency call to the police when the accused was acting in an irate manner and attempting to steal her TV. Upon arrival, officers observed injuries to the victim's son and learned that the accused had previously assaulted the victim. CYAC commenced a separate investigation into the child abuse.
[16] The victim alleges between November 6 and 12 she was in her bedroom in the apartment. She was sitting on the bed, using her phone. The accused approached her and an argument ensued with the accused alleging that she was talking to other men. The accused then pushed the victim in the head. The accused stated to the victim "If you ever cheat on me I will do worse."
[17] On Saturday, December 3, 2022, the victim was attempting to cut her daughter's toenails. The accused began yelling nonsense at the victim about cutting her daughter's toenails. The accused then proceeded to grab the victim by the shoulders and pushed her to the ground, causing her to strike her back on the door frame and land on the ground.
[18] On Tuesday, December 6, 2022, the victim told the accused that she wanted him to move out. The accused refused, and the two were engaged in a verbal argument. The victim was seated on the couch in the living room of the apartment. The accused approached the victim from the side and struck her in the left side of the head with a closed fist. The accused then used a metal object and broke the victim's TV. The accused then fled the apartment.
Information #22 70007915 (Child Abuse)
- Assault x 3
[19] After the very first in-person meeting between the accused and Ms. M. T., the accused pleaded his case of not having a residence and being down in his luck. Ms. T. felt pity for him and allowed him to stay with the family at their residence in the City of Toronto. Within a week, the friendship evolved into a sexual relationship and the children were encouraged to call the accused "daddy".
[20] The victims are 4, 5, and soon to be 3 years old, however, the youngest victim is not currently verbal and may be on the autism spectrum. On multiple occasions, the child victims were left in the care of the accused while their mother ran errands or completed chores both in and out of the unit.
[21] Between Friday, December 2 and Monday, December 5, 2022, in their residence in the City of Toronto, the accused was left in a caregiving role of the victims while the mother was completing laundry. During this time, the accused became enraged that the victim, 4-year-old Q. A-K, did not finish his food. He struck the victim in the eye with a fist causing instantaneous bruising to the soft tissue around the right eye. Within the same incident, he also pushed Q. A-K. while walking, causing the victim to fall. The accused used the fall as a plausible explanation for the injured eye when questioned by the mother.
[22] In the early morning hours of December 6, 2022, in the residence, the 4-year-old Q. A-K. awoke from his bed. The accused entered the bedroom while the mother was using the bathroom and became enraged with the fact the child was up and struck him in the left forehead with a closed fist causing a swollen bump.
[23] On or about December 5-6, 2022, in the residence, the accused was in a rage and struck the 5-year-old victim, S. A-K. in the back of the head with a closed fist causing pain and soreness. He also struck the 2-year-old victim, R. A-K. in the side of the head causing him to cry.
[24] The mother of the victims confronted the accused about the 4-year-old crying following the early morning assault and at that time the 5-year-old disclosed the assault against her and the 2-year-old child. The mother demanded that the accused leave her apartment and when he refused and began to act violently, she called police.
[25] The accused initially fled the scene but came back hours later for some of his belongings and was arrested by police at the scene.
[26] The accused was transported to 55 division and held for a show cause hearing for these charges as well as a set of domestic-related charges against the mother.
Background of the Offender
[27] Mr. Vieira-Paulino is 27 years old. He is a citizen of Portugal. He has no prior criminal record.
[28] He had a normal childhood. He does not have any mental health issues. Rather, he admits to using drugs, which he blames for his criminal behaviour. He claims to have stopped using drugs and wishes to remain sober.
[29] He has worked as a roofer.
Victim Impact Statements
[30] No victim input had been solicited from either victim of the stranger attacks on the original date for plea and sentencing. I requested that the Crown make genuine efforts to obtain victim impact statements. On December 11, 2023, the Crown provided two victim input statements.
[31] Ms. Hsieh informed the court she is more aware of strangers when in public and feels less safe as a newcomer in the country.
[32] Dr. Siddiq explained the laceration she sustained was only one centimetre from her jugular vein. As a doctor herself, she believed that had her neck not been turned to the left at the time she was struck, it could have been a fatal wound. [1] Plastic surgery will be required to remove the scar tissue. She has also suffered psychologically, and her family and friends did as well after they learned what happened to her. She has stopped using the TTC in the same manner she did before the attack, since she was assaulted outside a station she commonly entered. The assault had a “permanent impact” on her life.
[33] Ms. T. declined to provide a formal victim impact statement regarding the abuse she and her children experienced. However, she informed the Crown that her youngest child is developmentally delayed, does not speak, and may have a form of autism. She requested that Mr. Vieira-Paulino be ordered to stay away from her and her children.
Submissions of the Parties, and The Inadequacy of the Crown’s Position
[34] On November 7, 2023, when the pleas were entered, the Crown sought a sentence of six months in jail on the charges relating to the attacks on strangers with a knife that occurred on June 20, 2022, and consecutive sentences of one month each for the assaults on Ms. T. and those on her children. [2] The total custodial sentence proposed by the Crown was therefore eight months’ jail. The Crown also sought a three-year probation order.
[35] Mr. O’Connor submitted that a sentence of six months less a day on the stranger assaults was preferable. His client was not a citizen and would be deported in the future if he received a lengthy sentence as he did not have a lawful basis to remain in Canada. [3] To the extent that his immigration status was a relevant consideration, he asked me to consider a sentence that might not run afoul of the relevant provisions of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27.
[36] When I indicated my serious concerns with the positions advocated for by the parties, Mr. O’Connor presented the sentencing proposal as “essentially a joint position.” The Crown did not dispute this characterization of the plea deal, despite the fact the parties were suggesting different periods of incarceration. The “spirit” of the agreement appears to have been something at least akin to a joint position in their minds.
[37] Mr. O’Connor referred me to R. v. Anthony-Cook, 2016 SCC 43. He argued I should not disregard the joint position, as it would not bring the administration of justice into disrepute.
[38] This argument has a fatal flaw. Either a plea deal is a true joint position, or it is not. In R. v. Nahanee, 2022 SCC 37, the Supreme Court of Canada described at para. 27 what constitutes a joint position: [4]
To be clear, a joint submission covers off every aspect of the sentence proposed. To the extent that the parties may agree to most, but not all, aspects of the sentence — be it the length or type of the sentence, or conditions, terms, or ancillary orders attached to it — the submission will not constitute a joint submission. The public interest test does not apply to bits and pieces of a sentence upon which the parties are in agreement; it applies across the board, or not at all.
[39] The parties in this case did not agree on the total amount of custody. It was not a joint position. They may have only been one day apart. But that day mattered significantly, given the emphasis Mr. O’Connor placed on the potential collateral immigration consequences his client might face if I imposed a six-month sentence on any individual charge.
[40] However, even where the plea positions taken by the parties do not constitute a joint position, the Supreme Court provided guidance about the proper procedure to follow if the presiding judge is considering imposing a harsher sentence than that proposed by the Crown. The parties should be notified and allowed to make further submissions. On December 11, 2023, I had the opportunity to hear further submissions from both the Crown and the defence. I also had the benefit of a pre-sentence report (“PSR”).
[41] I note that I received no authorities from either party on November 7 in support of their positions, and only sparse victim information from Ms. Sweeney about Ms. T.’s concerns with respect to the accused. No effort had been made at all to obtain victim impact information from the victims of the knife-based attacks in violation of their rights in the Canadian Victims’ Bill of Rights Act, S.C. 2015, c. 13, s. 2.
[42] Even viewed through the standard normally applied to joint positions, I find the proposed sentence would bring the administration of justice into disrepute. I recognize that certainty in plea negotiations is vital to the proper functioning of the courts, and that joint positions should only be rejected in rare cases: see R. v. Harasuik, 2023 ONCA 594, at para. 22. Nevertheless, I find that an informed and reasonable person would view the justice system as having broken down if I had accepted the near-joint submission.
Sentencing Law – First Principles
[43] Section 718 of the Criminal Code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”.
[44] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1. As explained by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, the “more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence will be”: see para. 12.
[45] Where the crimes committed were violent and involved significant physical and/or emotional injuries, the sentencing principles of denunciation and general deterrence must be given priority. This applies even for cases involving first-time offenders: see R. v. Mohenu, 2019 ONCA 291, at para. 12.
[46] That is not to say the principle of rehabilitation does not still play an important role for someone as young as Mr. Vieira-Paulino. It does, as does the principle of restraint: see R. v. Blanas, at para. 5. But they cannot be given the same weight as these primary sentencing principles.
Intimate Partner Violence and Child Abuse
[47] The assaults on Ms. T. and her children cannot be viewed in isolation. Mr. Vieira-Paulino was her intimate partner and was entrusted to care for and provide for her children. His crimes of violence occurred in their shared residence. Had he not been in an intimate partner relationship with Ms. T., he would never have been afforded the opportunity to know her children. His repeated assaults affected not only each victim individually but the entire family. All the victims cared for and loved one another. Each was harmed by every assault that occurred, whether they were the direct target of his rage or not.
[48] In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the Ontario Court of Appeal made the following observations about intimate partner violence in Canada at para. 1:
Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.
[49] In R. v. Cunningham, 2023 ONCA 36, the Ontario Court of Appeal emphasized that in all cases of intimate partner violence, “the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence”: see para. 26. These must be the “overriding considerations” when determining a fit sentence: see para. 27, citing R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.).
[50] The Court held that victims of intimate partner violence are in a position of trust and vulnerability concerning their abuser, another crucial aspect of understanding an appropriate response to these crimes. The Court further observed that Parliament introduced Bill C-75 in 2019, which contained a focus on intimate partner violence and supported the imposition of increased penalties. Justice Benotto wrote as follows at paras. 49-52: [5]
The most significant changes were those made to sentencing, including the expansion of s. 718.2 (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the commission of an offence involving abuse of an intimate partner must be considered an aggravating factor on sentencing. It is noteworthy that “intimate partner” includes current or former spouses, common-law partners and dating partners.
Parliament also enacted s. 718.3(8) of the Code, which provides discretion to sentencing judges to impose a term of imprisonment higher than the maximum when the offence is committed in the context of an intimate partnership.
Parliament has also acted in the civil context. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for instance, has been amended to address “family violence” in the determination of parenting plans: see ss. 16(3) (j) and 16(4).
Thus, the intention of Parliament clearly supports enhanced penalties for perpetrators of domestic violence and denunciation and deterrence as the primary sentencing objectives. It also supports changes in sentencing ranges to reflect societal awareness and knowledge of the damage to society, as well as victims, caused by domestic violence.
[51] The Criminal Code contains several specific subsections that apply to this sentencing proceeding. Those provisions, which must be considered, include the following:
- Section 718.01 – “When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”
- A sentence shall take into consideration:
- Section 718.2(a)(ii) “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim of the offender’s family”
- Section 718.2(a)(ii.1) “evidence that the offender, in committing the offence, abused a person under the age of 18 years”; and
- Section 718.2(a)(iii): “evidence that the person, in committing the offence, abused a position of trust or authority in relation to the victim”
- Section 718.04: “When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”
[52] Each of these provisions is vital to determining a fit and appropriate sentence. None were referenced by either party during the original date for the plea and sentencing.
[53] Earlier this year, in R. v. Marchand, 2023 SCC 26, the Supreme Court explained how section 718.01 should be interpreted. The Court held at para. 123:
[Section] 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability (R. v. Parranto, 2021 SCC 46, at para. 44; Lacasse, at para. 12; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 51). Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited; to ensure respect for human dignity, the door to rehabilitation must remain open (Bissonnette, at paras. 46 and 85; Hills, at paras. 140-41; Nasogaluak, at para. 43).
[54] The assaults on Ms. T.’s children call out for special consideration. All children are inherently vulnerable. This is a foundational principle of Canadian law that is recognized in the Criminal Code and provincial child welfare legislation, and the international treaties that Canada has signed such as the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3: see A.B. v. Bragg Communications Inc., 2012 SCC 46, at para. 17.
[55] In the context of these specific crimes, I note that it is difficult to imagine more vulnerable victims than Ms. T. and her children. A young mother invited a man into her home to live with her and her family. He quickly became a surrogate father to the children. They all trusted him. Yet he violated that trust by abusing not only Ms. T., but also each of her children, who were only five, four, and two years of age at the time.
[56] Mr. Vieria-Paulino’s crimes of violence did not occur on a single occasion. They occurred more than once against Ms. T. and her four-year-old child. They were also committed at least once against her five-year-old child and her youngest and most vulnerable two year old child, who was developmentally delayed. Mr. Vieira-Paulino used a closed fist when he assaulted the children and caused noticeable physical injuries to one of them. Combined with the assaults on Ms. T., there was a pattern of family violence.
[57] It is against this background that the importance of the principles of deterrence and denunciation must be understood. In R. v. Friesen, 2020 SCC 9, at para. 105, the Supreme Court explained that Canadian criminal law is a “system of values.” A sentence that “expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians” ([M. (C.A.) [, [1996] 1 SCR 500]](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii230/1996canlii230.html), at para. 81). The protection of children is one of the most basic values of Canadian society (L. (J.-J.) [(1998), 126 CCC (3d) 234 (Que CA)], at p. 250; Rayo, at para. 104)”. [6]
[58] In Friesen, the Supreme Court of Canada noted that, in the context of sexual offences against children, Canadian society has a far greater understanding of both the wrongfulness of these crimes and the harm caused by them. In R. v. M.A.C., 2023 ABCA 234, the Alberta Court of Appeal applied that same reasoning to the physical abuse of children, writing at para. 49:
“…we continue to develop a greater understanding of the harm caused to children, families and society by offences committed against children. Even in non-sexual assault cases, acknowledging this harm reminds sentencing judges to appropriately assess the gravity of any offence against children when determining a proportionate sentence…”
[59] Even before Friesen and its progeny, appellate courts across the country had long recognized that physical abuse of a child arising out of circumstances that invite a finding of a high degree of culpability will require a severe sentence: see, for example, R. v. Marks at para. 27 and R. v. Dixon, where at para. 11 the British Columbia Court of Appeal condemned the “abhorrence of child abuse.”
[60] The Ontario Court of Appeal made the following remarks about the severity of child abuse when it is committed by a parent or caregiver in R. v. W.R., at paras. 14 and 16:
Strict maintenance of the trust relationship between parents and children, particularly children whose vulnerability and needs are heightened by young age, developmental difficulties or conditions such as FAS, or other similar factors, is an integral component of responsible and civilized community life in Canada. Few, if any, other relationships in society will attract more rigorous scrutiny by the courts in their application of the law in order to protect against the abuse and exploitation of vulnerable persons by those to whom their care and protection have been entrusted.
… this court has long emphasized the imposition of substantial sentences is essential to meet the purposes of sentencing in order to protect defenceless children from mistreatment by their parents or other caregivers…
[61] Post-Friesen and the enactment of Bill C-75, the severity of the sentences must rise concordantly with our improved understanding of the terrible, long-lasting, and inter-generational trauma crimes of child abuse inflict on their victims and their families.
[62] I emphasize that the full impact of the assaults on these children cannot be fully appreciated at this time. The physical injuries they suffered will have healed. The emotional and psychological trauma may haunt them their entire lives.
[63] In Friesen at para. 83 the Supreme Court of Canada made the following remarks, which I appreciate were about sexual abuse of children, but are nevertheless applicable to physical abuse as well:
In many cases, it will be impossible to determine whether these forms of harm have occurred at the time of sentencing. If the victim is an adult at the time of sentencing, the court may be able to conclude that these forms of potential long-term harm have materialized into actual harm. However, as Moldaver J.A. (as he then was) recognized in D. (D.) [(2002), 58 OR (3d) 788], if the victim remains a child at the time of sentencing, "[t]ime alone will tell" whether that child will experience particular forms of harm as an adult (para. 38). It may also be impossible to determine the nature and extent of the harm that the victim will experience during childhood, since particular forms of harm may materialize following the date of sentencing.
See also: R. v. P.C.M., 2020 SKQB 118, at para. 55.
[64] As previously stated, the assaults committed against Ms. T. and her children are interconnected and cannot be viewed in isolation. In Barendregt v. Grebliunas, 2022 SCC 22, at para. 143, the Supreme Court of Canada stated that even exposing children to family violence can have long-term detrimental impacts on their development and places them at risk of emotional and behavioural problems throughout their lives. To inflict violence upon children directly will almost inevitably cause even more long-term negative consequences. A fully informed appreciation of the devastating impact this violence had on these innocent children must be considered when determining a proportionate sentence.
[65] Furthermore, the need to deter others from abusing children and denounce it in the strongest possible language cannot be overstated. A strong message will be sent today that the abuse of women and children by men in positions of trust will not be tolerated. The proposed thirty-day consecutive sentences for each of these sets of offences do not come close to recognizing the moral culpability of the offender or the important societal interests of protecting women and children from family violence.
[66] The assaults on the children were cruel. They were committed with callous indifference to their young ages and vulnerable status. There was no justification for this conduct whatsoever. These offences demonstrate Mr. Vieira-Paulino has a deeply entrenched and disturbing proclivity towards the use of violence whenever he becomes angry or frustrated. That he could not restrain himself from assaulting three different children on multiple occasions speaks to the gravity of his offending behaviour and his high risk to re-offend. That he was in a position of trust towards them as a quasi-father figure and acted in this manner is not only aggravating. It is morally reprehensible.
[67] Mr. Vieira-Paulino should have been using his position of trust towards these children, and their mother, to love and care for them. He was her partner, and the children called him “daddy.” Instead, he did the opposite, abusing them repeatedly as he could not control his anger. The catalysts for his assaults on the children were as minor as one child not finishing a meal or another being awake at a time that was inconvenient to him. Some of the assaults occurred for no reason whatsoever. Abusing his position in this family as a caregiver has long been recognized as a serious aggravating factor best characterized as a “grievous breach of trust”: see M.A.C., supra; R. v. ET, 2015 ONSC 903, at paras. 40-41; R. v. M.E., 2012 ONSC 1078, at para. 60.
[68] Moreover, it was entirely foreseeable to Mr. Vieira-Paulino that his crimes of abuse would leave the children with both physical injuries and trauma. They will likely experience ongoing psychological harm from the abuse they suffered: see M.A.C. at para. 53. The one child who witnessed their mother’s abuse when she was simply cutting the child’s toenails will also have to process the impact of that event, trying to fathom why her mother would have been mistreated in such an awful manner. It is also highly aggravating that the children were so young. Several of the assaults took place on one child while in the presence of the other children, which must have created a sense of fear among them: see M.A.C. at para. 55.
[69] Prior reported decisions provide some guidance as to the appropriate disposition in this case. While some of these cases involve facts more serious than the abuse that occurred in this case, they are still informative.
[70] In ET, supra, a mother was convicted of three counts of assault with a weapon, one count of aggravated assault, one count of assault causing bodily harm, and two counts of unlawful confinement of her son. The abuse began when he was only four years old. The mother’s reasons for assaulting her child were for correctional purposes – that is, to address his bad behaviour, as she perceived it.
[71] She used household items as tools for discipline, transforming them into weapons as the jury determined her conduct was criminal. They included a belt, wooden spoon and metal spatula. She also bit her son’s fingers, leg and torso, and held his hand over a hot element on a stove. She locked him in a closet on two occasions as well. The abuse finally came to an end nearly five years later when a teacher discovered some of his injuries, which included scarring.
[72] Justice Conlan found the abuse was “extreme, cruel, degrading and dangerous”: and formed a pattern of abuse: see paras. 40-41. While she was a first-time offender, with the support of her family, the court imposed a sentence of 30 months imprisonment.
[73] While Mr. Vieira-Paulino was not found guilty of the offences of aggravated assault or assault causing bodily harm against the children, the facts that he accepted include that he did in fact cause bodily harm to the children when he assaulted them. That is therefore an important aggravating factor. It is also aggravating that he engaged in a pattern of abuse. As these cases demonstrate, prolonged abuse of children alongside the infliction of bodily injuries can even justify a penitentiary sentence.
[74] For child abuse cases involving less serious assaults, reformatory jail sentences or lengthier conditional sentences are entirely appropriate. In R. v. J.W., 2022 BCPC 49, the offender was alone with his six-day-old son in an apartment that he shared with the child’s mother. She had stepped out briefly. When she left, the child was uninjured. When she returned, the child had suffered blunt force trauma injuries. The trial judge found the accused caused the injuries and had consumed alcohol and marijuana in the hours preceding the assault.
[75] The child’s injuries consisted of bruising under his left eye; several small hemorrhages in the whites of his eye, a swollen upper lip, scratches and other bruises. He spent four days in a hospital.
[76] Justice MacCarthy imposed a 22-month custodial sentence: see para. 57.
[77] In R. v. C.D.M., 2022 BCPC 144, the offender was found guilty of two counts of assault on a two-and-a-half-year-old child. He began a relationship with the child’s mother approximately 1 year before the first assault. The assaults occurred when the child was in the offender’s case in their residence. On the first occasion, he slapped the child multiple times one evening when the child would not go back to sleep. He had been using alcohol and/or cocaine at the time. The child’s mother noticed extensive bruising on the child’s face when she returned home.
[78] During the second incident, which occurred nearly a month later, the offender grabbed the child’s head and forced it into a pillow in a moment of rage.
[79] The offender expressed great remorse for his "inexcusable behaviour" and had undergone intensive treatment and counselling before sentencing. The court imposed a global seven-month conditional sentence order: see para. 142.
[80] In R. v. Randell, the offender was a foster parent to a four-month-old child. He stuck the child on the side of his face causing a 6x8 cm bruise. He pleaded guilty to one count of assault. He expressed remorse, and a had prior, unrelated criminal record. Justice Gorman sentenced him to four months jail for this single incident of child abuse.
[81] In R. v. J.K., 2021 ONCJ 226, the offender was convicted of assault with a weapon, and unlawful confinement. She beat her son with a belt and placed him in the basement when he misbehaved. She also slapped him on his head. The child was 8-9 years old at the time.
[82] The offences were committed over a “non-specific, but considerable period of time”. Due to a positive PSR, good prospects for rehabilitation, and the fact the offender was employed, the court imposed a two-year less a day conditional sentence and three years probation.
[83] In R. c. El Hmaini, 2023 QCCQ 97, the offender was a day care worker. She struck four children between the ages of 2.5 – 3 years on the head. She also grabbed one of the children’s arms and pulled another’s hair. The assaults were captured on video. She pleaded guilty. The Court noted she had abused her position of trust as a day care worker. She underwent therapy and counselling, and expressed remorse. A conditional sentence of 170 days followed by two years probation was imposed.
[84] These prior authorities demonstrate that while determining an appropriate sentence in child abuse cases is a very fact-driven exercise, the fundamental principles and values animating these decisions remain constant. I find the remarks of Justice Hill in M.E., supra, to be particularly salient. Justice Hill wrote at para. 44 that “[c]hildhood is expected to be very much about adventures, learning, fun, exploration and defining a sense of self. Memories of childhood should be good ones eagerly recalled – a time of development and innocent happiness with parental protection from harm and negative influences.” It should not be one “marred by the nightmare of abuse.”
[85] Justice Hill continued at para. 49: [7]
“A civilized society accepts that “children are entitled to look for protection to their parents” and parental brutality toward children “cannot and will not be tolerated” by the courts: R. v. Cudmore (1972), 5 C.C.C. (2d) 536 (Ont. C.A.), at p. 538. “The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at p. 111.
[86] Justice Hill’s judgment was written years before the Supreme Court of Canada’s decision in Friesen. His comments are even more poignant now. Crimes constituting the physical abuse of defenceless young children demand a severe punishment. Where repeated acts of child abuse result in physical injuries and/or psychological trauma, the penalties should increase dramatically.
[87] In my view, the assaults that took place in this case on these three very young children, and their mother, demand a total sentence of at least 9-12 months custody. The offences could likely justify an even greater amount of custody had I been provided more detailed information about the harm the assaults had on these victims.
Knife-Based Stranger Attacks
[88] Barring exceptional circumstances, the range of sentences for aggravated assault where significant injuries are caused to a victim starts at an upper reformatory sentence of 18 months and may extend to two years less a day even for a first-time offender. For offenders with similar prior records the range extends even higher into penitentiary sentences: see R. v. Tourville, 2011 ONSC 1677 at para. 27; R. v. Fisher, 2023 ONSC 1705, at paras. 18-19. While Mr. Vieira-Paulino was not found guilty of aggravated assault, but rather assault with a weapon and assault causing bodily harm, these prior decisions remain highly instructive. It was entirely foreseeable that either victim could have experienced serious injuries from Mr. Vieira-Paulino’s slashing at them with a knife in the manner he did. He targeted a vital part of the human body when he struck Dr. Siddiq.
[89] This was a savage, potentially life-threatening attack on two defenceless strangers. There was no justification whatsoever for these attacks and none was provided during the sentencing hearing. In Tourville, Justice Code held that unprovoked assaults with no suggestion of a consent fight or self-defence warrant enhanced penalties: see para. 30.
[90] I have considered the following prior appellate decisions involving first-time offenders and offenders with minor prior records. In R. v. MacDonald, 2010 ONCA 178, the offender threw a bottle at the victim while the two were at a bar. The beer bottle struck the victim and caused lacerations, an injury to the victim’s jaw, and knocked the victim unconscious: see para. 3. The Court of Appeal upheld a 12-month jail sentence.
[91] In R. v. Horner, 2018 ONCA 971, a first-time offender was convicted of assault with a weapon on his intimate partner. While she had her back to him, he approached her with a knife. There was a struggle and her hands were badly cut. She was traumatized by the violence. The Court of Appeal upheld a sentence of 13 months custody and two years probation.
[92] In Fischer, supra, the offender was found guilty of several offences including aggravated assault and assault with a weapon. He had a previous criminal record including one prior entry for assault causing bodily harm. Justice Monahan found the offender was in the basement of a sports bar at 2 a.m. with the victim and other men. He pushed the victim and slashed him on the right side of his face with a knife: see paras. 2-7. The court received no victim impact information.
[93] Justice Monahan characterized the assault as “vicious and unprovoked”: see para. 29. As terrible as the injury was, it could have been even worse had it struck the victim’s “eye or neck”: see para. 29. [8] The appropriate sentence was held to be 3.5 years in prison.
[94] While Mr. O’Connor submitted that his client’s actions were the result of substance abuse, that does not constitute a mitigation factor in these circumstances. In R. v. Hamlyn, 2016 ABCA 127, at para. 23, the Alberta Court of Appeal held that “[t]hose who commit violent and unprovoked attacks on defenceless victims cannot shield themselves from the consequences of their behaviour by raising untreated addictions.” Hamlyn attacked a defenceless victim with a screwdriver. The victim suffered two puncture wounds to the back of his neck and eight puncture wounds to his head, right nostril and cheek. The Court of Appeal characterized it as a “violent, unprovoked attack” with potentially life-endangering consequences and upheld a 21-month jail sentence. While he had a prior criminal record, it was not for crimes of violence.
[95] I heard no evidence that Mr. Vieira-Paulino is an addict struggling to rehabilitate himself. He simply made a terrifying decision to assault completely innocent people on the street for no reason after he had used an intoxicating substance. This too speaks to Mr. Vieira-Paulino’s high level of risk.
[96] The proposed six-month sentence, even after a plea, does not capture the gravity of the offence, the harm caused, and the risk that someone could have been the subject of life-altering injuries or even death.
[97] A sentence of at least 15-18 months custody is required for these offences. There were two innocent victims, one of whom suffered a three-inch laceration to her neck very closer to her jugular vein. The risk to both victims of significant physical and emotional harm was readily apparent at the time Mr. Vieira-Paulino attacked them. Offences of this nature also shatter the community’s collective sense of safety and security in public places. Indeed, both victims described no longer feeling safe outside around strangers anymore in their victim impact statements.
Mitigating Factors
[68] I acknowledge that the proportionality analysis required in all sentencing decisions demands that the court reflect not only the seriousness of the offence but also the degree of responsibility of the offender. A court must not focus solely on the offence and its impact on the victim: see R. v. Rabbit, 2023 ABCA 170, at paras. 51-53. Properly assessing the degree of responsibility of the offender requires the court to consider his background and life experiences. That may provide important contextual information for why the offences occurred.
[98] Yet there is nothing about Mr. Vieira-Paulino’s background or the circumstances surrounding the commission of these offences that mitigate his conduct. He simply chose to act out violently on each of these occasions. In the first set of offences, he indiscriminately attacked random people on the street with a knife. For the intimate partner violence and child abuse sets of offences, he betrayed the trust placed in him and harmed Ms. T. and her children in their own home.
[99] Mr. O’Connor is correct to point out the early plea which spared the victims from having to testify, including the children. That deserves credit.
[100] Nevertheless, I heard little to nothing from Mr. Paulin-Vieira during either of the dates for the sentencing hearing that suggested he was truly remorseful for his conduct or had any insight into his offending behaviour. Regarding the child abuse charges, he denied to the PSR author he committed the offences at all, and impugned the character of Ms. T. He suggested she lied to the police because she was upset he did not wish to continue their relationship. That stood in complete contrast to his acceptance of the facts at the guilty plea, and the submission I heard that he “expressed remorse” for his actions. While not an aggravating factor, it may be considered when determining his likelihood of re-offending and the need to impose a sentence that will adequately protect the public: see R. v. Markos, 2019 ONCA 80, at para. 25.
[101] Mr. Vieira-Paulino blamed his use of cocaine and crystal meth for the knife-based assaults he committed after leaving the Tim Horton’s. He said he “can’t control my actions when using drugs.” Yet he has not sought any counselling or treatment and has expressed no plans to do so. His risk to re-offend violently therefore remains high if he returns to illegal substances once released from custody. As the author of the PSR noted, he lacks structure in his life, including full-time employment, and may easily fall prey to his vices.
[102] Mr. O’Connor also asked me to consider the potential immigration consequences of a lengthy jail sentence. Where an offender is not a Canadian citizen, the collateral consequence of the sentence on his immigration status is a relevant factor. Section 64(2) of the IRPA allows a person found inadmissible for “serious criminality” to appeal to the Immigration Appeal Division only if he or she had been punished by a term of imprisonment of less than six months: see R. v. Freckleton, 2016 ONCA 130, at para. 1.
[103] As the sentencing judge, I must determine the appropriate sentencing range without consideration of any immigration consequences. Following that determination, I shall consider whether a sentence that avoids those consequences may nevertheless be appropriate: see R. v. McKenzie, 2017 ONCA 128, at paras. 30-31.
[104] Mr. Vieira-Paulino’s crimes demand a sentence of far more than six to eight months jail as previously explained. His immigration status cannot be used to avoid a fit and proportionate sentence, even if that means it is virtually certain he will be deported.
Credit for Pre-Sentence Custody (“PSC”)
[105] Mr. Vieira-Paulino has been in custody since his arrest on December 6, 2022. As of December 11, 2023, that amounts to 370 days. He is entitled to 1.5:1 credit for that time, which is 555 days, or approximately 18 months and 15 days: see Criminal Code section 719(3.1); R. v. Summers, 2014 SCC 26.
[106] In addition, I must consider the harshness of his pre-sentence custodial conditions, and weigh the evidence presented on this issue: see R. v. Green, 2021 ONCA 932, at para. 16. Mr. O’Connor submitted that his client has been the subject of regular lockdowns.
[107] In R. v. Hassan, 2023 ONSC 5040, Justice Himel of the Superior Court of Justice reviewed the state of the contemporary jurisprudence on the credits awarded by judges of the Ontario and Superior Courts of Justice in Ontario for the excessive use of lock-downs at the Toronto South Detention Centre and other difficult conditions of imprisonment there: see paras. 25-30. Justice Himel concluded that credit should normally be granted to “demonstrate the court’s condemnation of these conditions”: see para. 46. I agree.
[108] Justice Himel determined an extra credit of .5 days for every day spent in custody at the TSDC was appropriate: see para. 47. Mr. Vieira-Paulino is therefore entitled to as much as another six months’ credit in mitigation. [9]
Conclusion
[109] A total sentence of 24-30 months would have been entirely appropriate, reflected in a 15-18 month sentence for the stranger attacks with a knife and a subsequent 9-12 months for the intimate partner violence and child abuse offences. The knife-based stranger attacks in this case occurred months prior to the crimes of domestic violence and child abuse. They address different societal interests and consecutive sentences are entirely warranted.
[110] The victim impact statements that were ultimately provided by Ms. Hsieh and Dr. Siddiq provided important information about the physical and psychological effects of the knife-based attacks. This case should serve as a reminder of how important it is that the rights of victims are respected and that their input is obtained. Without these statements, I would not have understood the full impact these attacks had on either person.
[111] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to receive a cumulative sentence that does not exceed the overall culpability of the offender: see R. v. Ahmed, 2017 ONCA 76, at paras. 79-85. Considering this principle, and the principle of restraint, I am reluctant to sentence a first-time youthful offender to a penitentiary sentence. This was still a guilty plea prior to a trial. I am satisfied that a global sentence of two years less a day in custody followed by three years probation satisfies the need for general deterrence, and denunciation, while adequately reflecting his moral culpability.
[112] Due to the amount of credit he must be granted under Summers, and the mitigating effect of conditions of incarceration at the TSDC, he has effectively served such a sentence.
[113] A lengthy probation order will ensure continued state supervision of his conduct, protect the victims, and connect him with community-based rehabilitative programming, should he remain in Canada. If he chooses to take this opportunity to seek the treatment he needs for his anger and substance abuse problems, his risk of reoffending will lessen considerably. That is in the public interest. Should he fail to do so, he will be subject to a breach proceeding and find himself back in custody.
[114] I will note his pre-sentence custody on each count of each information and impose one day of jail followed by three years of probation concurrent across all counts.
[115] A section 110 order prohibiting him from possessing any weapons will be in place for 10 years.
[116] A DNA order shall be issued on all offences, whether they are primary or secondary designated offences.
[117] The victim fine surcharge is waived on all offences.
Released: December 14, 2023 Signed: Justice Brock Jones
[1] Dr. Siddiq was not qualified as an expert witness for the plea and sentencing hearing, and thus I weigh her subjective assessment of the seriousness of her injury accordingly. [2] To be perfectly clear, the Crown sought a sentence of 30 days for each count of assault on each child, but to be served concurrently to one another. [3] The accused was being held in custody under the applicable Immigration and Refugee Protection Act provisions as well as the Criminal Code charges. [4] My emphasis added. [5] My emphasis added. [6] My emphasis added. [7] My emphasis added. [8] My emphasis added. [9] I appreciate that assigning a numerical value to any Duncan type concerns is not normally the preferred approach: see R. v. Smith, 2023 ONCA 500 at para. 34. My intention is to acknowledge the significant mitigating factor regarding the conditions of imprisonment that continue to exist at the TSDC.